Judge slams prosecutors for dismissing gay juror

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San Diego  A judge ruled Tuesday that prosecutors in a case involving a group of same-sex marriage activists violated the defendants' rights by dismissing a potential juror based on his sexual orientation.

Superior Court Judge Joan Weber ruled that the defendants in the case were denied a representative jury when prosecutors challenged the selection of a gay man to be on the panel. She said she found the actions of the San Diego City Attorney’s Office “shocking.”

The judge dismissed the entire jury panel.

Prosecutors disagreed with Weber’s ruling. They said the potential juror indicated in a questionnaire that he had protested in support of gay rights issues in the past. Based on that, and other answers, the prosecutors determined he was not a suitable juror for this case, they said.

Assistant City Attorney Andrew Jones said outside the courtroom Tuesday that the case focuses on whether the six defendants who remain charged in the case unlawfully blocked the operation of the county clerk’s office during a protest in August 2010.

“That's all that this is about,” Jones said. “It has nothing to do with same-sex marriage.”

Attorneys for the accused activists contended that prosecutors had systematically excluded gay people from the jury pool. The defense lawyers raised motions after the prosecution challenged the selection of two potential jurors, both of whom had identified themselves as gay.

“There has been a fundamental violation of a constitutional right to a jury trial by my client’s peers,” said Todd Moore, who represents one of the defendants.

Dan Greene, an attorney for one of the activists, said that while it’s common for defense lawyers to file this type of motion when they believe such a violation has occurred it is highly unusual for judges to grant them.

“This was something that had to be done,” Greene said.

Weber’s ruling means the lawyers will have to pick a new panel if the case goes to trial. She ordered them back to court Wednesday morning to discuss how the case should proceed.

Nine people were arrested August 19, 2010, during a protest stemming from the passage of Proposition 8, California’s same-sex marriage ban, and a subsequent ruling by U.S. District Judge Vaughn Walker declaring the initiative unconstitutional.

Walker’s ruling is on appeal.

The protesters had gone to the downtown County Administration Building where they demanded that marriage licenses be issued to same-sex couples. The protest was peaceful and business was allowed to continue, defense lawyers said.

According to court records, the City Attorney’s Office offered a deal to each of the defendants last year in which they could plead no contest to an infraction. The case would be dismissed after they each completed eight hours of volunteer work at a nonprofit organization of their choice.

Three of the defendants accepted the deal.

On Tuesday, the judge urged the prosecution to consider reducing the charges to infractions for the remaining defendants. At first, the prosecutors said they were prepared to proceed with the case as currently charged.

“I’ve never had so many jurors express concerns about why a prosecutor’s office would move forward and spend time and money on a case of this nature,” Weber said.

Later, City Attorney Jan Goldsmith said through a spokesman that he is willing to try the case without a jury on infractions rather than misdemeanors, if the defense proposes it.